Monday, 29 September 2008

From the World Intellectual Property Organization in Geneva today comes Press Release PR/2008/566. It states, in relevant part:

"Designers from the sixteen member states of the African Intellectual Property Organization (known by its French acronym OAPI - Organisation africaine de la propriété intellectuelle) will, from January 1, 2009, benefit from a 90% reduction in fees prescribed under the Hague System for the International Registration of Industrial Designs, an international treaty administered by the World Intellectual Property Organization (WIPO) that helps designers acquire protection for their designs in multiple countries. This decision was taken by WIPO member states ... on the occasion of their annual Assemblies.

Following its decision in 2007 to recognize applicants from Least Developed Countries (LDCs) a 90% reduction in the prescribed fees, the Hague Union Assembly agreed last week to extend this fee reduction scheme to certain intergovernmental organizations, the majority of whose member states are LDCs. The fee reduction is intended to improve the ability of design creators from LDCs to benefit from the Hague system by reducing the costs of filing design applications under the system.

... OAPI comprises 16 member states of which 12 are LDCs. These 12 countries automatically qualify for the Hague fee reduction scheme for LDCs while the four remaining OAPI members (Cameroon, Congo, Côte d’Ivoire and Gabon) would not normally do so. OAPI’s accession to the 1999 Geneva Act means that nations from all members states of OAPI are entitled to file international applications under that Act. With a view to preserving the underlying principle of uniformity, members of the Hague Assembly agreed to amend the current schedule of fees under the 1999 Act of the Hague Agreement and to extend the Hague fee reduction scheme for LDCs to applicants from all member states of OAPI, whether LDC or not. Thus, applicants from Cameroon, Congo, Côte d’Ivoire and Gabon will now benefit from this new scheme to the extent that their international application is governed exclusively by the 1999 Geneva Act.

An international registration submitted under the Hague System will have effect in as many members as identified in the application for registration, except those that refuse protection within the required time-limit.

OAPI’s accession to the Geneva Act of the Hague Agreement offers applicants in its 16 member countries the opportunity to extend the protection of their creations of form abroad in a streamlined and cost-effective manner. It further creates an interface between WIPO’s international industrial design operations and those of OAPI allowing users to obtain protection in all OAPI countries as well as the other members of the Geneva Act of the Hague Agreement by filing one single application for the registration of their industrial designs. OAPI member states include Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Côte d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Mauritania, Niger, Senegal and Togo.

Under the Geneva Act of the Hague Agreement, intergovernmental organizations with an office in which protection for industrial designs can be obtained for the territories of such an organization are able to join the Hague system. OAPI is the second inter-governmental organization to have acceded. The EC acceded to the Geneva Act last January. The Hague System has a total number of 53 contracting parties covering 72 states. The Geneva Act has effect in 32 of these contracting parties covering 63 states.

The Geneva Act of the Hague Agreement enhances the Hague system by making it more compatible with the procedures for the registration of industrial designs in countries where protection of industrial designs is sometimes contingent on a more complex examination to determine the acceptability of an application, so as to allow these countries, such as the United States and Japan, to accede to the Hague System.For more information, please contact the Media Relations and Public Affairs Section at WIPO: Tel.: +4122-3388161 or +4122-3389547; Fax: +4122-3388280: Email: mailto:publicinf@wipo.int".

Zakumi the FIFA World Cup 2010 (tm) mascot has been released! According to his report card "Zakumi is a jolly, self-confident, adventurous, spontaneous, and actually quite shrewd little fellow. He loves to perform and always follows his instinct and intuition, yet sometimes has the tendency to exaggerate a bit. You will often find him fooling about and teasing people but not in a mean way. He is warm-hearted and caring, and wants to make as many friends as possible." He is quite versatile too "The name ‘Zakumi' is a composition of ‘ZA' standing for South Africa and ‘kumi', which translates translates into ‘10' in various languages across Africa."

It is not often that a leo gets all maternal over a leopard. However, Afro Leo cannot help but think that releasing such a character into the wild is bound to get attention from the IP poachers. In fact it happened to an uncle, World Cup Willie, just last year. So it is with some relief that he spotted Zakumi in the company of some good IP lawyers at Spoor & Fisher. It is fortunate too that experience from cat fights like Sabel V Puma should help young Zakumi against any poachers.

CNN Money reports that about $55,000 has been raised in an auction last week to help fund the copyright infringement action brought by Johannesburg-based artist Gerhard Marx against BMW South Africa which, he says, has stolen his "trademark style" for an advertising campaign. BMW SA denies liability. The trial takes place this October

More than 70 works by internationally acclaimed South Africans such as William Kentridge, Walter Battiss and Penny Siopis were sold, though a piece by Marx himself fetched the top price. The "trademark style" of Marx involves cutting up maps to create outlines of human figures. He claims that the 2006 advertising campaign imitated this style and is claiming $184,000 in damages.

Without having seen the allegedly infringing ads or having read the submissions, it is not possible to pass comment on the strength of Marx's case. However, the protection conferred by copyright generally extends only to works as specific objects of art and not to the style in which they are created; it may be wondered whether Marx's case might be argued in terms of "passing off" as well, in that people seeing the ads would assume that Marx had either created them or had endorsed BMW cars. There's certainly an element of damage here: the use of the style by BMW could make it unlikely that any other car maker would engage Marx to create advertisements for it.

More comments on Warren Siebrits' blog here. And thanks to Hugo Cox for forwarding the link to this item ...

Friday, 26 September 2008

Just published in issue 5/2008 of the WIPO Magazine is an article, "STRAP and CLAMP – Nigeria Copyright Commission in Action", by Sylvie Castonguay (WIPO Magazine Editorial Team, Communications and Public Outreach Division). It explains tha activities of STRAP -- Strategic Action Against Piracy -- which was launched three years ago, and CLAMP -- the Copyright Litigation and Mediation Programme.

The article paints an encouraging picture of the attempts being made to turn back the tide of piracy, despite lack of resources and the "informality" of Nigeria's internal market, by a policy that promotes commercial education and enhanced consumer awareness as a constructive support for the legal sanctions route.

It has now been confirmed by the East African newspaper that France Telecom one of the world's leading players in the telecoms sector will use Kenya as the launchpad for its operations in East Africa.

France Telecom through Orange purchased a majority stake of 51% in Telkom Kenya which makes it one of the three largest telcos in Kenya, the others being market leader Safaricom and newly christened Zain (formerly Celtel). Orange launched its mobile service last week, having hitherto focused mainly on fixed telephony under the Telkom Kenya brand.

Whereas a new player of the France telecom kind will definately help deflate prices for mobile services, it is unclear to what extent the provision of data services will be positively impacted in Kenya and the region at large. Hopefully, the entry of Orange in Kenya will lead to downward pressure on the price of telecom services in the region generally, as well as better service delivery and innovation.

Posta Uganda, formerly a core asset of the Uganda Posts & Telecommunication Corporation is reported to be preparing to enter the mobile money transfer business. According to the East African newspaper this week, the company is likely to launch a money transfer product quite similar to that run by Safaricom in Kenya under its highly successful M-PESA brand.

Under this system, Posta Uganda clients will be able to transfer and receive funds using their mobile phones through tele-centers country wide. Posta intends to establish atleast 20 tele-centers courtesy of a US$300,000 grant from the World Bank. These innovations are a credit to Dr. Ham Mulira Mukasa, Minister for ICT under whose docket Posta Uganda falls. The formal Postal sector has been under tremendous financial stress as a result of the emergence of cheaper and faster means of mail delivery as well as stiff competition from International courier companies such as DHL and FEDEX.

Posta Uganda's entry into this hitherto unknown territory is nothing less than an act of courage. However, the company will need more than wits to survive in an industry that is mired in regulatory grey zones. It is not clear whether funds transfer of this nature will be covered under the Uganda Communication Commission's existing regulations or traditional Banking law. More specific issues for instance include whether Posta can be considered a 'deposit taking institution', a concept that might excite the Bank of Uganda(central Bank) or whether it is more aligned to the concept of a 'carrier' as known in telecoms law.

Overall, this is an important development in the increasing convergence of communication services and products in East Africa, as well as the development of innovative brands. Yours truly would be keen to know under what brand Posta Uganda intends to launch the new service!

Thursday, 25 September 2008

An editorial from IPPMedia reveals that Industry, Trade and Marketing minister Mary Nagu has a ready list of three institutions in Tanzania she says are equipped with facilities which, if used effectively, could help inventors and other intellectual property stakeholders benefit more from their works. These are the Business Registrations and Licensing Agency (Brela), the Copyright Society of Tanzania (Cosota) and the national Commission for Science and Technology (Costech). The legal mechanisms include the 1987 Patents Act, the 1986 Trade and Service Marks Act, the 1999 Copyright and Neighbouring Rights Act, and the 1994 Fair Trade Practices Act, the last providing for the activities of the Fair Competition Commission. However, research has also shown that (not unlike most other places in Africa) "there is such a pervasive lack of public awareness on the need to observe intellectual property laws that many people see nothing wrong in freely copying other people`s works."

Wednesday, 24 September 2008

..is the title of a article published by Solani Ngobeni, an academic publisher in the the Mail & Guardian online. Solani sets out some of difficulties and barriers in the African publishing industry but asks some intriguing questions about the poor state of publishing, particularly in RSA where he feels that there is simply no excuse in relying on overseas institutions to publish African works.

In answering some of his own questions he suggests that publishers need to run workshops and make the public aware that millions are invested in books and that authors invest their intellectual property. He also calls on the government to pass a transformation charter for the publishing industry.

Solani makes a point and readers may recall that fellow blogger Jeremy voiced his concern in an Editorial entitled "Intellectual property and Africa: the agony and the entropy" for issue 4 (April 2008) of the monthly Oxford University Press Journal of Intellectual Property Law & Practice. Blogging is of course a relatively easy and cost effective way for academics to publish and though not always appropriate (or even accessible) for all publishing it can contribute in a meaningful way. As a reminder, this blog remains intent on getting more contributions and contributors from all regions in Africa. If you have a piece to publish or are interested in blogging please send an email here.

Tuesday, 23 September 2008

Microsoft East Africa announced a 40 percent reduction in cost of its home and student office suite amid complaints of rampant software piracy in the Kenya. The price is only applicable to Africa and other emerging markets, according the article. The article also explains that last year, officials from the Kenya Copyright Board and Microsoft raided cyber cafés in Nairobi and other rural areas, demanding payment of license fees to avoid prosecution for using pirated software, which pushed many cafés out of business. The actions of Microsoft are no doubt borne out of frustration, but also the realisation that as Africa's demand for software technology grows they need to adapt to secure long term brand strength for their legitimate goods. Changing a culture of piracy is an uphill struggle. On the other hand the cost of Microsoft's software can be a major barrier to development in African countries as illustrated by the demise of the cyber cafés.

Monday, 22 September 2008

South Africa now has its own Elizabeth Emanuel. Yesterday, the Cape High Court held that clothing designer Jenni Button had transferred all rights to trade using her own name to her erstwhile company Jenni Button (Pty) Ltd. She later resigned from this company and may now only use her name to trade overseas - all local rights were sold to the company. The judgment is not yet available online so comparisons with Emanuel v Continental Shelf 128 Ltd (C-259/04)[2006]ETMR 56, 750 will have to wait.

Afro-IP has recently been introduced to AppFrica, the African IT News and Industry Portal. At present it just hosts the Timbuktu Chronicles, Afrigadget, BBC Africa and IT News Africa, but it is on the lookout for further blogs to host. It is also gearing up for conferences. Afro-IP wishes this fledgling venture the best of luck and looks forward to its success.

Saturday, 20 September 2008

In what appears to be a landmark case, Prof. George Kakoma has sued the Government of Uganda for copyright infringement and refusal to pay him royalties for the use of his 1962 composition, which subsequently became the National anthem.

According to the plaint recently filed before the High court in Kampala under civil suit 197 of 2008, the plaintiff composed a song in 1962 in tribute to Uganda in response to an advert run by Government. His composition was chosen, in consideration of which he was paid 2,000 shillings (about US$14,200 at 1962 exchange rates). The plaintiff argues that there were no conditions attached to the payment.

Over the succeeding years, the plaintiff sought payment of royalties from the Government for the use of his song to no avail. He tried to interest the state in concluding an assignment of the copyright in the anthem which was not forthcoming. The pleadings state that "the government of Uganda subsequently expressed an interest to have the plaintiff's copyright assigned to it and formally wrote to the plaintiff but no agreement was ever concluded between the parties".

In a nutshell, whereas the government showed an interest in giving some form of financial compensation to Prof. Kakoma for his composition, no payment was actually effected.

As the suit proceeds to hearing, it will be interesting to see how the substantive issues of ownership will be dealt with, as well as whether the court will pronounce itself on the use of adaptations, translations and other expressions of the Anthem. Other issues that are of jurisprudential value are whether a state can be found to have infringed copyright of a national anthem and if so, what kind of permissions would prevent an action for infringement from succeeding. Unlike the Copyright Act, 2006, the 1964 Copyright Act of Uganda which would have applied for most of the period over which the claim applies did not explicitly mention moral rights. Is this or is it not an issue?! Hopefully, the court will address these and more interesting legal issues to come in its judgment.

The plaintiff is seeking the following remedies (paraphrased):1) A declaration that he is the lawful owner of copyright over the song comprised in the national anthem;2) A declaration that the defendant is liable for copyright infringement and for inducing the infringement of the said copyright;3) Royalties for all the previous use of the plaintiff’s composition over a span of 40 years.4) General damages for infringement of the copyright5) A permanent injunction restraining the defendant and its agents from further infringing or inducing infringement of the said works.6) Interest on the above claims at court rate from the date of judgment until payment in full.7) Costs of the suit.

Friday, 19 September 2008

By Madrid (Marks) Notification No. 181, it is announced that Sao Tome and Principe has deposited an instrument of accession to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks. The Protocol will enter into force there on 8 December 2008. By Hague Notification No.89 Sao Tome and Principe will bring the Geneva Act of the Hague Agreement into effect on the same day, thus facilitating international design protection there.

Swaziland's King Mswati III has urged local entrepreneurs to take advantage of the available information and communication technology development initiatives within the country for better competitiveness, improved standards and overall business efficiency. Speaking at the Entrepreneur of the Year Awards presentation ceremony, he said that government had made major strides in the promotion of e-commerce and added:

"We shall soon join the worldwide information superhighway in the form of broadband to enable Swaziland to take its rightful place in the globalised economic activities. Whilst exposing the business people to global trends and best practice, the awards also foster more understanding of government procurement systems to as to encourage more small and medium enterprises participation in the country's tendering system".

This, the King said, will enable the country to continue with its efforts to attract quality foreign direct investment that would create strong linkages with locals in terms of knowledge and skills transfer.

Thursday, 18 September 2008

The South African Advertising Standards Authority recently held that the packaging of a new product in Bayer's Cal-C-Vita range was misleading. The product, Cal-C-Vita Immune Protector, contained various minerals and vitamins, but no calcium. Bayer's argument was that Cal-C-Vita is a registered trade mark and the new product was an extension of the product line, with Cal-C-Vita used as brand name rather than as indication of the product contents. Also, Bayer submitted that the periodic name for calcium is not 'Cal' but 'Ca' and so the reference was not misleading.

The ASA relied on Clause 4.2.1 of section II of the Code of Advertising Practice dealing with misleading claims to find that the product packaging was in fact misleading. All previous Cal-C-Vita products had contained calcium, and the original product was a calcium supplement. It found that all other products on the market containing the the letters 'Cal' did contain calcium and that it appeared to be industry practice to indicate the presence of calcium in a product by using these letters.It seems unwise of Bayer to use their trade mark so cavalierly - surely this use also makes the trade mark registration vulnerable in terms of s10(12) and 10(13) of the Trade Marks Act?

Earlier this week the Nigerian Tribune published the paper that Adebambo Adewopo (Director-General, Nigerian Copyright Commission) delivered at the annual bar conference held recently in Abuja. The paper, "Intellectual property rights protection and legal practice in Nigeria: Challenges and prospects", paints a depressing picture of the state of IP in Nigeria today: general ignorance of the law, the absence of a national IP policy, a lackadaisical attitude towards infringement, inadequate funding -- these are all obstacles that must be overcome if investor confidence and economic growth are to be achieved. The general lack of specialist IP practitioners and of means of providing the right levels of education and training are singled out:

"Stemming directly from the problem of ignorance is the fact that the number of practitioners in the field of IP is few compared with other areas of legal practice in Nigeria. It is considered as an esoteric field of law, the preserve of technical specialists and corporate lawyers and although times have changed in many countries. This may not be unconnected with the fact that the teaching of IP has not been enthusiastically embraced by tertiary institutions particularly the Universities in Nigeria. Only few faculties of law offer IP as a course in their law curriculum at undergraduate level in Nigeria and fewer offer the programme at postgraduate level. And for faculties offering it, IP is just one of the optional courses available.

Lack of professionalism in the practice of IP law in the country is a major challenge to its practice. Although many legal practitioners claim to be IP expert in Nigeria, the truth is that their expertise is only limited to the filing of papers and forms for Patent, Design and Trademark application at the Trademark Registry which in reality does not really requires a deep knowledge of IP. IP law is a field of knowledge that is vast and deep.

Unlike in developed countries and even some developing countries, we donot have lawyers trained as patent attorneys or those with scientific background that can write patent claims and specifications. While the state of our law (for instance patent law) does not make a thorough examination of a patent claim mandatory thus making expertise in patent examination and the need for sound knowledge of drafting patent claim and specification necessary, the globalized nature of IP usage should make us to start looking in the direction of professionalizing the practice as a means of encouraging sound expertise in the field".

Mr Adewopo's comments pose a challenge to both academic and professional IP lawyers in Nigeria, indeed a serious challenge to their professional skills and educational background. If any of them would like to write a response, Afro-IP will be pleased to publish it.

Tuesday, 16 September 2008

The initial Anne Pratt case (Anne Pratt v First Rand Bank Limited [2004] 4 All SA 306 (T)) caused quite a stir amongst IP professionals in RSA dealing with the transfer and licensing of RSA IP assets with foreign based companies. The decision appeared to support an earlier decision in Couve (Couve and Another v Reddot International (Pty) Ltd and others 2004 (6) SA 425 (W)) that the transfer of assets (including IP assets - albeit that the subject matter of the Anne Pratt case was not IP) to a non-resident without the approval by the Exchange Control Department of the Reserve Bank was void. The Couve decision appeared to conflict with a 1981 decision (Barclays National Bank v Brownlee 1981 (3) SA 579 (D)) which concluded that a contravention would not result in a nullity. In the initial Anne Pratt case though the court held that exchange control had been granted. Anne appealed and, on 12 September, failed.

The decision goes into some depth on exchange control rulings and the practices relating to them in respect of the sale of securities. Of relevance to this blog appears to be the observation on "onus" which the court felt rests on the plaintiff ie to adduce and prove that exchange control approval was not obtained. Proving a negative is never easy and this may provide some comfort to those involved in IP transactions (perhaps even a simple trade mark assignment) where exchange control was not been obtained and who may fear the transaction void. Nonetheless, there now seems to be a SCA decision in RSA which does not disapprove of the earlier Pratt cases (endorsing Couve) even though the SCA was not specifically asked, it appears, to adjudicate on the ramification of a failure to obtain exchange control approval. Afro Leo would be happy for comment.

Monday, 15 September 2008

PR-Inside reports on the latest account from companiesandmarkets.com on the rapid advance of Egypt towards a higher degree of IT sophistication. Key findings of the report include the following:

* while computers remain a luxury item for many Egyptians, a large, young population and increasing affordability should underpin growth.

* the overall IT market size is expected to increase from US$889 million in 2007 to around US$1.3 billion in 2012.

* following the government’s plan to make Egypt an outsourcing and call-centre hub, IT services should grow rapidly over the next forecast period.

* the ‘Computer for Every Home’ programme in 2006, with more than 1.4m sales, was followed up in 2007 by the launch of ‘Nation Online’.

* in the past year or so, an increasing number of tech firms have taken advantage of lower costs to set up in Egypt.

However, overall spending on software remains low, amounting to an estimated US$137m in 2007. One explanation for the low spending on software is piracy, with up to 80% of some IT goods being counterfeit.

Friday, 12 September 2008

Ghana’s controversial hip-life musician, Barima Sidney is readying himself to drag the National Democratic Congress (NDC) to court after the party had asked him to ‘go to hell’ following his call on politicians to stop using his ‘Africa Money’ hit track for electioneering campaigns. The NDC afterwards had continued to use the song saying that though it had no copyright on the track, the artiste had no right to stop the party from using it for electioneering campaigns. The NDC Deputy General Secretary, Baba Jamal, has maintained that the ‘Africa Money’ track has become public property and can therefore be used by any individual. “Once we buy the track without money, we can play it anywhere especially when we are not using it for commercial purposes,” he was quoted to have said an Accra-based radio station. The musician said that he had no problem with politicians playing the song in their private homes but what he was against was it being used a campaign tool on political platforms. The musician said he had not sold, rented, hired-out or leased the song or its copyright to any political party.

Whilst the prospect of a local decision on copyright in Ghana is great news for this blog, one cant help but feel that the politicians will seek to settle - why would they want to run the risk of ostracising supporters of the popular politician during election time?

Thursday, 11 September 2008

A Port Elizabeth (PE) businessman is being prosecuted for selling hundreds-of-thousands of rands worth of counterfeit Microsoft software. Packaged to look like the real thing, and featuring simulated holograms and counterfeit certificates of authenticity, the goods were being sold out of Vikesh Singh's PE Technologies shop, in Newton Park, PE. Dale Waterman, Microsoft's corporate attorney for anti-piracy in the Middle East and Africa, accompanied police on the raid. “Evidence uncovered during the raid points to the supply of products manufactured by a global counterfeiting syndicate from the Far East.

However, there is still a long way to go. The problem for Microsoft and other software companies is explained by Microsoft SA anti-piracy manager Charl Everton who said earlier this year “In SA, one in every three copies of our software is used illegally. Estimates suggest that reducing piracy by 10 percentage points over four years could generate an extra 1 200 jobs in the local IT sector, R6 billion in local industry revenue, and R490 million in additional tax revenue.” (Source ITWeb)

Microsoft is an active member of the Business Software Alliance. See also, earlier posts here.

Tuesday, 9 September 2008

According to the New Vision Newspaper report today attributed to the marketing manager of Dembe Enterprises, fake goods are rapidly eroding the value of genuine ones and leading to loss of jobs.

Dembe Enterprises is one of Uganda's leading local distributors for well known brands such as as Kellogs and Heinz. According to the manager, counterfeit goods "...have depressed suppliers of genuine products, sending them into financial constriction". The lonely voice of Mr. Patel on this matter echoes that of many more distributors in the region who are struggling with falling profits. His call is for "every legitimate business player to be more responsible for the financial and quality interests of his company".

Whereas individual enterprises in more robust economies like South Africa and Kenya can battle counterfeiters using their own resources, hardly any local firms appropriate budgets for such activities. The challenge therefore is on the government of Uganda to hasten the process of passing more stringent measures, as well as the anti counterfeit bill in order to stem this menace. Other stakeholders such as the Uganda Manufacturers Association, the Private sector Foundation, Enterprise Uganda and the Uganda National Chamber of Commerce & Industry must also use their position to lobby government for the passage of policies that enhance competition and legitimate business.

John Kariuki of the East African newspaper reports this week that the Kenya Association of Manufacturers has intensified its efforts to lobby parliament to table the Anti Counterfeit Bill this year.

Some key aspects of the bill include a proposal to have a tribunal that will handle petitions by small manufacturers who cannot afford to litigate in the Industrial court against importers and vendors of counterfeits. Secondly, the bill proposes the establishment of a board which will act as a policing body, with representatives from industry, government ministries and private sector corporations.

The Kenya Association of manufacturers has a strategy of widening publicity on the ills of counterfeits through first of all through its members. Leading companies such as Toyota Kenya have already budgeted for anti counterfeiting activities to the tune of over US$60,000, DT Dobbie (franchisees of Mercedes Benz) with a budget of over US$20,000 and others such as GlaxoSmithkline about to join the joint campaign.

According to Mr. William Mwatu, Director Medical & Regulatory Affairs at GSK "the emphasis of the campaigns is educating the people on how to distinguish between genuine and counterfeit products, but more importantly, dispelling the myth that fake products are cheaper". In the same breath, Mr Dickson Paroji of the Kenya Association of Manufacturers adds that The campaigns also aim at showing that fakes might be cheaper but the cost to the user is much more in the long run because of poor performance and the health risks involved".

These efforts are commendable and manufacturers associations as well as other private sector associations and consumer groups in East Africa and the EA Community would be well advised to take notice. Initiatives to fight brand dilution and counterfeiting can be successful once undertaken by vigilant companies but joint efforts will yield even better results.

According to The Times this morning, Google has teamed up with cable company LibertyGlobal and the HSBC bank in a venture to offer internet access to three billion people in Africa and other emerging markets. This project, O3b Networks, is directed at people for whom broadband internet access is not currently a commercially viable option. Each party has initially invested US$20 million in the project, which is expected to go live by the end of 2010. The three lead backers are apparently reserving the right to contribute further to the estimated $150 to $180 million of equity financing needed for the project, any further financing being funded by debt. This venture could offer bandwidth to customers at just 5 per cent of the existing cost. More to the point, it could offer African internet users a far better way of trading within the continent, establishing local brands at continental level and facilitating the distribution of films and music.

“More than 1.7 billion people in India and Africa do not have access to essential drugs... across the world, about 14 million people die due to infectious diseases and 10 million children die due to vaccine preventable diseases,''...''the Indian Patent Office should not hesitate to invoke provisions of compulsory licensing and flexibilities available under TRIPS and India Patent Act whenever the drugs required by poor remain out of reach'' according to K Satyanarayana, Head of the Intellectual Property Rights Unit, Indian Council of Medical Research (ICMR) (source: Hindu Business Line)

Afro IP asks if this is appropriate action to be taken by some/all IP Offices in Africa?

Monday, 8 September 2008

According to feedback from the CIPRO trade mark liason meeting held on 3 September involving CIPRO and representatives of the major IP firms:

1. CIPRO is testing a declining balance system for searches with a view to formally implementing it.

2. Requests for expediting the issuing of certificates will only be entertained in two circumstances, namely if the certificate is specifically required for litigation proceedings or if the certificate is required to obtain a foreign application in the US, for example. In both instances the request has to be sent with a motivation and supporting documents.

3. The major firms are still busy with a project to clear the backlog of outstanding official actions, outstanding notices of acceptance and outstanding certificates.

This form of assistance (esp 3. above) between major firms (at their own expense) and CIPRO has been going on for many years with a view to improving the effectiveness of the National Office. However, despite the assistance, CIPRO still struggles with backlogs, ineffeciencies and staffing problems.

Meantime, SAIIPL has issued a formal notice of the 2008 Annual General Meeting of the Institute to be held at the Misty Hills Country Estate, Muldersdrift on Saturday, 8 November 2008 at 10:00.

There's more evidence of Tunisia's slow-but-steady economic growth policy paying off, in terms of inward investment. International car hire franchise National Car Rental reports that a 200-vehicle fleet of vehicles has now been made available at 10 locations throughout Tunisia, which "reflects the growing importance of this North African country".

Ever wondered why you can easily pick up a dvd set of "Friends" at a local Blockbuster but popular South African produced equivalents, like "Egoli", are as scarce as a power share clauses in a Mugabe power share agreement? In a piece published in The Times yesterday Tim Cohen looks at the debate and suggests that SABC's decision to do legal research on IP rights is encouraging. Afro Leo wonders if this is really a legal problem at all.

"What’s the problem here? Is this just another case of rapacious broadcasters, or is it a case of sleepy television companies failing, as usual, to see the business potential of what’s under their noses? Or is it a broader problem with the small size of the SA market, and its peculiar demographics?" asks Cohen.

The article concludes that "Things, however, could be changing. The SABC has committed itself to investigating the subject of intellectual property — the project is being undertaken by legal specialists Spoor and Fisher."

Although the mandate given to Spoor & Fisher is not clear, one wonders why legal specialists have been drafted in to solve the problem - is this really a problem of intellectual property laws on rights and ownership? Perhaps the laws may have some part to play - for example, is there a case for introducing compulsory licensing in situations where broadcasters fail to maximise opportunities? The answer though seems to lie in business. Isn't this "exploitation problem" more of a business opportunity for someone to do a deal with the broadcaster to commercialise the rights? In much the same way that traditional licensing agencies approach rights holders of say a sports brand to produce energy drinks, there seems to be little reason why a broadcaster would not be interested in negotiating a deal based on business plan for its retained rebroadcast rights. There are also other ways to stimulate merchandising for TV and film shows; Warner bros and Disney have capitalised on merchandising opportunities for their characters which in turn drives demand for their programs and shows. But they are also smart - try and get your hands on the limited edition Jungle Book release (as Afro Leo tried to do when policing his image) and you will find that a premium product that attracts value because simply because it is difficult to get. It is not clear how aligning RSA copyright laws with those in other countries would necessarily solve the problem.

Friday, 5 September 2008

From my Google Alerts I see that various businesses have been rejoicing at the fact that they have been designated as 'Superbrands' in the first Superbrands East Africa awards. Congratulations to all those brands which have been so designated. They include Vodacom Tanzania, MTN, Vision Group and Mukwano, Safaricom and Nomi.

I would have liked to write an informative blog about this, but then I encountered the Superbrands East Africa website. Having found it slow, fiddly, poorly designed in terms of use of space and annoyingly underpopulated in terms of useful information, I just gave up. I wondered how many local users who have not yet been blessed (as I have) with a state-of-the-art computer and broadband would find it.

Presumably as a vote of confidence in the buoyancy of the South African beer market, leading brewer SABMiller is to launch Dreher Premium Lager there as an extension of the Dreher range of beers. Said the company's Managing Director Tony van Kralingen:

"This is testimony to our commitment to continue providing the right brand portfolio for our customers and great brand choices for consumers. ... The beer market has historically been resilient in tough economic times and it is likely to perform similarly in the current economic climate. "We see sustainable opportunities in the premium market, even though the sector's growth rate has softened more recently".

This brings the total number of premium brands in the SAB stable to seven, and its total brand portfolio to 16. The brewery today has over 60% more brands in its portfolio than it did in 2000 [source: Bizcommunity.com].

Wednesday, 3 September 2008

Network World reports that Chinese electronics company A-Link Technologies has launched Rwanda's first home-made 'Alira' mobile phone handsets, making that country the first in the region to sell locally manufactured mobile phones. This is a tangible result of the signing in 2006 of a memorandum of understanding between A-Link and the Rwanda Information Technology Authority, the country's telecom regulator. The Alira, which is aimed at sales throughout the region, will initially be manufacturing just 100 handsets per day, a good way below its capacity.

Tuesday, 2 September 2008

According to a press release yesterday Hunton & Williams LLP announced that it has signed a Memorandum of Understanding with East African firm Mkono & Co. Advocates. This MOU follows a number of recent cross border link-ups between law firms including Bowman Gilfillan's link with Kenyan based Coulson Harney, Spoor & Fisher's establishment of an office in Gambia, Adams & Adams recent decision to establish a presence in Mozambique and Evershed's takeover of SA based Routledge Modise.

This ABSF event is important not only because it is the first ever of its kind but also because of the issues to be deliberated on. Intellectual property is one of the key topics for discussion; in particular:* Intellectual property and genetic inventions* Intellectual Property Rights As Applied In Biotechnology Applications; and* Intellectual Property Rights & Plant Variety Protection

The topics above are of critical importance not only for the participants at this forum but also for a wider body of stakeholders including farmers on the continent, investors in the sector, scientists and above all, Governments. For a number of years now, investors have been jostling Governments in East Africa to set out clear policies and laws on the conduct of biotechnology, as well as ownership of inventions derived from this area of technology. So far, no country in the region has an explicit piece of legislation pronouncing itself, particularly on the thorny issue of patenting life forms. The closest that any country has gone is Kenya by acceding to the UPOV convention on the protection of plant varieties.

The issue that remains is, what weight will decisions made in this conference carry. This is important because the possibilities suggested by biotech scientists appear quite interesting if applied to current challenges in the bio-medical area, food production and others. Hopefully I will be reporting on the positions taken once my fly on the wall reports back to me from the conference!

Perhaps the only good thing about a delayed overnight weekend flight converting to a day-long daytime trip is that one can sit and read, think and daydream, literally, with few distractions. There is no Tri Nations test, no kids (not yours anyway) and no household chores. The time can turn out to be perfectly enjoyable – even in cattle class. In any event, this is what happened to Afro Leo who found himself lazing in 71k for a whole day pawing through pages of The Africa Report, Africa Business and New African. Unlike European focused equivalents, these publications contain reports normally reserved for plots in action novels, such as stories of an Eton old boy getting 34 years for plotting to overthrow the government of Equatorial Guinea and how an eminent Brazilian banker allowed his bank to get defrauded to the tune of $291million by a Nigerian scammer posing as the Director of the Central Bank of Nigeria. Another article entitled: IP Techniques: Africa Bursting with Opportunities produced alongside an article on Ethiopia’s recent decision to premium brand its coffee - “Ethiopia blazes branding trail” by Anver Versi (see earlier Afro-IP post here) also caught Afro Leo’s eye.

The IP article sub titled Africa Bursting with Opportunities claims that the application of IP tools and branding techniques could add value to Africa’s products and services allowing the IP owners to retain the huge profits now being made by middlemen. The article cites Kenya Tea, Sudanese extra long staple cotton, Namibia’s marula oil, Togolese black soap, Sengalese yeloow fin tuna, Tanzania’s blackwood, cashews from Madagascar, mud-cloth from Mali, Ethiopian Leather and, surprisingly, television animation which is apparently worth around $50-$70 bn annually. The report is unfortunately vague as to what it means by IP techniques or the “middlemen”. However, Afro Leo suggests that the techniques are a combination of recognising that IP exists, defining and protecting it and at the same time marketing the product under a brand as a premium product to distribution networks and channels that can take the message to as many consumers across the globe as possible. In other words creating a brand and an exclusive category for the product, and taking it to market by partnering with licensees and distributors with appropriate expertise and networks. There is no doubt that these opportunities exist and that Ethiopia has been astute enough to recognise and exploit its latent IP for long term growth in demand for its coffee beans. This story is however, is unfortunately quite at odds with most of the short term thinking that is evident in the pages of the three publications, albeit that the book review on Africa Rising [Vijay Mahajan] on how Africa’s 900m consumers offer “more value than you think” is refreshingly accurate.

Mr Mahajan is quoted as saying “Like most scholars in the developed world, I saw Africa more as a charity case than as a market opportunity. I was wrong, and this book is to set the record straight”. The book is due out in the US, UK and South Africa this September.

According to MarketWatch, Morocco is one of the most advanced telecommunications markets in Africa. It has mainly-privatised and highly profitable incumbent telco, three fixed network operators, mobile penetration of more than 55% plus the highest penetration and some of the lowest prices for broadband access anywhere in Africa. Good news not just for service providers but for anyone developing and licensing technologies in the sector is that the Moroccan market is predicted to experience continued spectacular growth that will see it reach levels of development rivalling those of some European markets over the next five to ten years. Details of the MarketWatch report here.